Sunday, July 29, 2007

Shalom Carmy on Noah Feldman (and a Postscript)

Professor Shalom Carmy has, in typically perceptive and lucid fashion, produced a pointed and penetrating response to the challenge raised by Noah Feldman's article. Of especial note is his discussion of the question of a Jewish physician violating the Sabbath in order to treat a Non-Jew. As Carmy notes, this claim has long been a weapon in the arsenal of anti-semites. Indeed, it was used as a vicious anti-religious weapon in the fifties by secularists here in Israel.Inter alia, Carmy writes:An honest understanding of the Halakha about saving a Gentile on Shabbat is grounded in the fact that not all mitsvot can be violated to save life. Idolatry, sexual offenses and murder may not be allowed even to save life, however this flies in the face of our utilitarian mentality. Shabbat has much in common with the so-called “big three.” [Note R. Shimon’s view in Yerushalmi that a bystander may intervene to prevent Shabbat violation even at the cost of the transgressor’s life.] For Jews Shabbat may be violated to save life, but only on the basis of a special limmud (inference)—“desecrate one Shabbat so that he may observe many Shabbatot.” Where this principle does not apply, Shabbat is inviolable.

Where people understand that religion may on occasion make life and death demands, the law that Shabbat is so important that it is overridden only for those who are members of the community that observes it is difficult but not scandalous. In our culture this understanding is lacking; thus the failure to treat Jews and Gentiles identically will be interpreted as indifference to the fate of the non-Jew, and will be perceived as tantamount to connivance in his death. It will provoke hatred, and understandably so. In this case, the theoretical gulf separating secularists from halakhists is not universalism vs. particularism but the recognition that Shabbat is, in principle, worth the sacrifice. It is common to stress that Judaism, compared, let us say, with Hinduism, affirms the value of human life and eschews such sacrifices. That the value of human life is overridden only in exceptional circumstances is a significant element in generalizing about Jewish ethics. But an almost absolute principle is not the same as an absolute one. In any event Feldman presumably knows very well that his high school teacher’s remark is not representative of grown-up halakhic thought, and he knows even better that it is not a guide to the practice of Orthodox Jewish doctors. Nonetheless, in his desire to satisfy himself against those who failed to properly esteem his choices and flatter his vanity, he has resorted to one of the most potent weapons of 19th-20th century anti-Semitism. He has made it easier for individuals or groups in medical schools to sideline or bar Orthodox Jews, in the name of high-sounding universalistic moral ideals, from positions in the medical profession. Whether he intends these consequences or not, and whether or not he envisions, in his wise shrewdness and genteel outrage, further punitive consequences to his classmates and their children, he has employed his power and prestige to those ends. He, and we, must live with the consequences of his decision.

Not only Feldman’s actions have consequences. There are rabbis and teachers, who sometimes feel that they must show their cleverness at any cost. At times it seems that the less they have to contribute, the more they wish to stand out. Like precocious children impressing the adults, they vie for the attention of their students with forced displays of cleverness and provocation. The point is to come up with something that nobody else would think of saying and to say something shocking and memorable. Surely the teacher whom Feldman quotes succeeded eminently in this game of pedagogical one-upmanship. He, and we, will have to live with the consequences of his judgment.Postscript:I recall reading that Professor Gerald Blidstein once asked the Rov if he was satisfied with the fact that Sabbath deseceration for a non-Jew was due to איבה, or the hostility toward Jews that would be thereby engendered. The Rov, reportedly, responded that while he was happy with the legal results, he found the actual argument morally unsatisfactory.I've thought a lot about this issue lately, and I've come to two conclusions. First, any fine moral impulse must still find its expression within the terminology of the Law. Sometimes, indeed oftentimes, that terminology is somewhat jarring to the non-professional ear. Thus, making all sorts of allowances for non-observant Jews because they are 'תינוקות שנשבו' sounds paternalistic, arrogant and dismissive of the rich cultural context within which someone might have been raised. That, however, is the legal tool we have. That, however, does not mean it should be bandied about supercilliously and hurtfully. (Indeed, I've often thought we should create some sort of new category.)The same is true, or so it seems to me, about the allowance of Sabbath violation for a non-Jew on Shabbat. As Carmy points out so well, saving a Life is not always an absolute value. Even saving a Jew on Shabbat requires special license. Recall that, according to the First Book of Maccabees (2, 32-40) there were those who fled Antiochus' decrees and were slaughtered because they thought that self-defense did not justify desecrating Shabbat. Modern society is based on absolute human autonomy, together with a very strong dose of narcissism. Thus, the idea that Human Life takes second place to anything is at best impossible, at worst, an anathema.Jewish Law realized that the question of treating a non-Jew on Shabbat had to be addressed and allowed. Halakhah came up איבה. Yes, in marketing terms it's terrible. That, however, is not the point. The genuine, Jewish moral impulse did find a cogent, principled legal category within which to function. Halakhah doesn't operate in philosophical categories, it operates in legal categories. One might add, though, that it's not much of a stretch to go from absence of hostility to co-fraternity. Or, alternatively, who says that Hobbes was wrong? Perhaps, Hazal and Rishonim had a more Hobbesian view of man than we (ostensibly) possess? Certainly, based upon the empirical evidence, Hobbes has the competition beaten, hands down.

13 comments:

1. carmis argument seems to leave the question begging. bottom line, there is an allowance to violate shabbos for a jew, but not one for nonjew, or at least different, more tenuous one.

2. you seem to augment this in your postscript. you say that chazal [or as you put it, jewish law] needed to do something about nonjews. but why? was halakha as it stood until then lacking, that the rabbis had to come up with eivah?

I don't think the license for non-Jews is any more tenuous than that for Jews. This is especially clear in light of the story from IMaccabees.

It's in the nature of Torah she-b'al Peh that it responds to different situations interpretively (See Guide III, 41 and 49). I have no historical data as to when he question of Hillul Shabbat for a non-Jew came up as pressing. For the same money, there may well have been an established practice that validated such behavior and all you have in 'eiva' is a post facum valodation (or יישוב המנהג or in Talmudistic lingo a מדרש מקיים).

I'm not sure why you have come to the conclusion that Jewish Law must of necessaity be Positivist. There is plent of room for Natural Law (Morality as you put it) within the Halachic framework. The sources that support this are numerous. See into to Shaarei Yoshor of R. Shimon Shkopp. Intro to Dor Revii on Chulin, and some of Rav IH Herzog's as well as Rav YM Tikozcinski's writings. Just to name a few. It would seem to me that Positivists - at least as far as latter decisors and thinkers go are in the minority - Y. Leibovitz and the Chazon Ish are the major figures in this school. And we all know where we can end up with Leibovitz..........

With regards to creating a new category for treating non-Jews on Shabbat, I recall R. Michael Broyde giving a lecture at McGill University this past fall where he applied his theory of reciprocity to such circumstances.

It might also be worth pointing out (or worse pointing out) that one technically may not violate Shabbos to save the life of a non-observant Jew. While poskim have permitted it, it is either because they are tinokos she-nishbu or for the same reason we are allowed to violate Shabbos for non-Jews.

Incidentally, I just wrote a lengthy and close analysis of my teacher R' Carmy's essay, particularly the important theological implications he has (perhaps esoterically) left for us to find in the second paragraph quoted above.

I invite you all to read that analysis and I look forward to receiving your comments.

I read Reb Yudel's reply to Shalom Carmy. I really think the issue is blown out of proportion. Yes, in 2007 Eiva is a very problematic heter. But what do you expect from the Middle Ages. In Medieval terms, eiva is a huge advance. No Christian or Muslim would have done anything close to that for another person. Should we recast it today; use the Meiri, what not? Sure. But please, it's dishonest to come back to a narrow definition of eiva when defacto no Frum doctor acts otherwise. Furthermore, can we stop hiring the intellectually challenged to teach in our schools? That would ave a lot of hassle.I also stand by my statement regardng Hobbes.

I don't share your view that Carmy wrote a "Pointed and penetrating response." I read a post that exaggerates and caricatures, calls names (baby, adolescent), makes foolish comparisons (i.e. Feldman to John Henry Newman), bandies about the label of antisemitism and in general pours it on too thickly. Perhaps Yudel is right and Carmy has deeply encoded a brilliant sarcasm. Too many impressionable minds will miss that (as I did - mainly because I don't think it's there) and will take his work as an exemplar - which it is not.

Jeffrey, if you believe, "No Christian or Muslim would have done anything close to that for another person" then you have my sympathy. I could not agree with you less. There are counterexamples in abundance of altruism, ancient, medieval and modern. And there is no way to defend your blanket condemnation of "them."

The point is "us". Noah was traumatized to hear his respected teacher speak of halakhic triage that checks for foreskins before treatment. That traumatic event came back out now in a "memoir" in the Times.

In a perfect world, the event should never have happened and the recollection should have remained repressed.

Noah was hurt in school and hurt by the school. He chose now years later to push back. So we are in a shoving match.

OK so, the lessons we learn are (1) don't use Judaism as you say, "supercilliously and hurtfully." And (2) when you get the push-back decide whether to yield or stand your ground. I'm ready to yield on the content. Some legitimate things do not need to be said. But I will stand my ground on against the humiliation that Noah has inflicted on our community. He is after all, the "evil son" of the haggadah par excellence.

Sorry Tzvee,You can't compare possible individual acts of compassion to Jews with religious principle. My condemnation of them was aimed at official policy and not all individual non-Jews. That having been said, the non-Jewish record from the Middle Ages on (at least) is woefully inadequate. The way we need to look under every rock to find 'Haside Umot ha-IOlam' is more trhan indicative. There was no Golden Age in Spain. There was no great rapprochement in Quattrocento and Cinquecento Italy. Fin de Siecle Vienna reaked of anti-semitism etc etc etc.In these matters Judaism comes out way ahead.

Feldman is beneath contempt. Let him take up his issues with his therapist and make peace with the fact that his children are not Jews. And let's stop playing pseudo-halakhic history, where we reduce the law to its putative historical sources.

Just a point about the much maligned heitar of aiva. It might be productive to root this particular "loophole" in the more general phenomenon of "darkei shalom" already found in Tannaitic\Amoraic literature. This in turn should be viewed as an accomplishment of the halakhic\meta-halakhic principle of "derakeh darkei noam ve'kal netivoteha shalom".